SRI K RAMASWAMY V. THE INCOME TAX DEPARTMENT

CRL.P/9780/2017

AI Insights

The case involves multiple criminal petitions filed by Sri K Ramaswamy against orders passed by the Revisional Court, which directed the Magistrate to proceed with private complaints filed by the Income Tax Department. These complaints alleged offences under section 276CC of The Income-Tax Act, 1961. The petitions challenged the Revisional Court's orders, arguing that they improperly directed the trial court to review its own orders, which is not permissible under law. The High Court, after considering the arguments and relevant legal provisions, dismissed the petitions, affirming the Revisional Court's orders and allowing the complaints to proceed.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 698190 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 16-08-2018
• Assessment Year: misc
• Other Referred Cases: Kalabharati Advertising Vs. Hemant Vimalnath Narichania and others, Major Chandra Bhan Singh Vs. Latafat Ullah Khan and others, Dr(Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur(U.P.) and others, State of Orissa and others Vs. Commissioner of Land records & Settlement, Cuttack and others, Sunita Jain Vs. Pawan Kumar and Others, Hindustan Petroleum Corporation Ltd., Vs. Ashok Ranghba Ambre, B.C. Suresh Vs. Sumithra, Hari Singh Mann Vs. Harbhajan Singh Bajwa and others, Ram Lal Vs. State of Rajasthan, Adalat Prasad Vs. Rooplal Jindal and Others, Harbhajan Singh Vs. Karam Singh and others
• Laws Referred To: The Income-Tax Act, 1961, Criminal Procedure Code
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JEEVAN NEERALGI
• Assessee Lawyers: KIRAN JAVALI
• Keywords: Cognizance; Income Tax; Private Complaints; Revisional court; Magistrate
• Section: 203; 200; 276CC; 482; 397; 202; 460(e)

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST 2018 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO. 9780 OF 2017 A/W CRIMINAL PETITION NO. 9775 OF 2017 CRIMINAL PETITION NO. 9776 OF 2017 CRIMINAL PETITION NO. 9777 OF 2017 CRIMINAL PETITION NO. 9778 OF 2017 CRIMINAL PETITION NO. 9779 OF 2017 BETWEEN: SRI K RAMASWAMY AGED ABOUT 67 YEARS S/O LATE KRISHNAPPA R/AT 2930/1. K-23 \"ASHWINI\", ST. MARY ‘S CONVENT CIRCLE, JLB ROAD, CHAMUNDIPURAM, MYSORE 570 004. ... PETITIONER (COMMON) (BY SRI: KIRAN S JAVALI, ADVOCATE) AND THE INCOME TAX DEPARTMENT BY ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), NO.55/1, \"SHILPASHREE\", VIDYARANYA COMPLEX OPP. STERLING THEATRE, VISHVESHWARANGAR, MYSORE. 2 NOW AT NO.22/16, RESIDENCY ROAD, NAZARBAD, MYSORE 570 010. ... RESPONDENT (COMMON) (BY SRI: JEEVAN J. NEERALGI, ADVOCATE- ABSENT) CRIMINAL PETITION NO. 9780 OF 2017 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO 1) SET ASIDE THE ORDER DATED 30.08.2017 IN CRL.R.P.NO.232/2016 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, MYSORE, AND CONSEQUENT THERETO THE PROCEEDINGS IN C.C.NO.173/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, INITIATED AGAINST THE PETITIONER. 2) SET ASIDE THE ORDER DATED 27.06.2015 IN C.C.NO.173/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE OF TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE PETITIONER AND DISCHARGE THE PETITIONER. CRIMINAL PETITION NO. 9775 OF 2017 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO 1) SET ASIDE THE ORDER DATED 30.08.2017 IN CRL.R.P.NO.227/2016 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, MYSORE, AND CONSEQUENT THERETO THE PROCEEDINGS IN C.C.NO.170/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, INITIATED AGAINST THE PETITIONER. 2) SET ASIDE THE ORDER DATED 27.06.2015 IN C.C.NO.170/2015 ON THE FILE OF THE COURT OF III 3 ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE,OF TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE PETITIONER AND DISCHARGE THE PETITIONER. CRIMINAL PETITION NO. 9776 OF 2017 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO 1) SET ASIDE THE ORDER DATED 30.08.2017 IN CRL.R.P.NO.228/2016 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, MYSORE, AND CONSEQUENT THERETO THE PROCEEDINGS IN C.C.NO.142/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, INITIATED AGAINST THE PETITIONER. 2) SET ASIDE THE ORDER DATED 27.06.2015 IN C.C.NO.142/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE OF TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE PETITIONER AND DISCHARGE THE PETITIONER. CRIMINAL PETITION NO. 9777 OF 2017 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO 1) SET ASIDE THE ORDER DATED 30.08.2017 IN CRL.R.P.NO.230/2016 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, MYSORE, AND CONSEQUENT THERETO THE PROCEEDINGS IN C.C.NO.172/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, INITIATED AGAINST THE PETITIONER. 2) SET ASIDE THE ORDER DATED 27.06.2015 IN C.C.NO.172/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE OF TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE PETITIONER AND DISCHARGE THE PETITIONER. 4 CRIMINAL PETITION NO. 9778 OF 2017 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO 1) SET ASIDE THE ORDER DATED 30.08.2017 IN CRL.R.P.NO.231/2016 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, MYSORE, AND CONSEQUENT THERETO THE PROCEEDINGS IN C.C.NO.143/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, INITIATED AGAINST THE PETITIONER. 2) SET ASIDE THE ORDER DATED 27.06.2015 IN C.C.NO.143/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, OF TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE PETITIONER AND DISCHARGE THE PETITIONER. CRIMINAL PETITION NO. 9779 OF 2017 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO 1) SET ASIDE THE ORDER DATED 30.08.2017 IN CRL.R.P.NO.229/2016 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, MYSORE, AND CONSEQUENT THERETO THE PROCEEDINGS IN C.C.NO.171/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, INITIATED AGAINST THE PETITIONER. 2) SET ASIDE THE ORDER DATED 27.06.2015 IN C.C.NO.171/2015 ON THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, OF TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE PETITIONER AND DISCHARGE THE PETITIONER. THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:- 5 O R D E R Heard the learned counsel for the petitioner. Learned counsel for the respondent is absent. In all these petitions, the petitioner has questioned the validity of the direction issued by the Revisional Court directing the learned Magistrate to proceed with the complaint. Since common question of law and facts are involved, these petitions are disposed of by this common order. 2. The outline facts necessary for the disposal of these petitions are that the respondent – The Income-Tax Department filed private complaints against the petitioner herein alleging commission of offence punishable under section 276CC of The Income-Tax Act, 1961. The learned Magistrate issued summons to the petitioner/accused without taking cognizance of the said offence. Hence, the petitioner/accused approached the Revisional Court under section 397 Cr.P.C.. After hearing the parties, the learned Sessions Judge by the orders impugned herein set aside the order passed by the learned III Addl. Senior Civil Judge & CJM, Mysore in respective private complaints and 6 directed the learned Magistate to peruse the contents of the complaints and other materials placed by the complainant and thereafter to proceed in accordance with law. 3. The contentions of the learned counsel for the petitioner in all the above petitions is that the direction issued by the Revisional Court has the effect of directing the trial court to review its own order which is not permissible in law. In support of his argument, the learned counsel has placed reliance on the following authorities:- 1. Kalabharati Advertising Vs. Hemant Vimalnath Narichania and others, AIR 2010 (9) SCC 437. 2. Major Chandra Bhan Singh Vs. Latafat Ullah Khan and others, (1979) 1 SCC 321. 3. Dr(Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur(U.P.) and others, (1987) 4 SCC 525. 4. State of Orissa and others Vs. Commissioner of Land records & Settlement, Cuttack and others. 5. (2008) 2 SCC 705 – Sunita Jain Vs. Pawan Kumar and Others, (1998) 7 SCC 162. 6. Hindustan Petroleum Corporation Ltd., Vs. Ashok Ranghba Ambre, (2008) 2 SCC 717. 7. B.C. Suresh Vs. Sumithra, ILR 2017 KAR 269. 7 8. Hari Singh Mann Vs. Harbhajan Singh Bajwa and others, (2001) 1 SCC 169. 9. Ram Lal Vs. State of Rajasthan.,(2001) 1 SCC 175, 10.Adalat Prasad Vs. Rooplal Jindal and Others (2004) 7 SCC 338. 11.Harbhajan Singh Vs. Karam Singh and others, AIR 1966 SC 641. 4. With reference to para 12 of the decision in Kalabharati Advertising Vs. Hemant Vimalnath Narichania and Others, (2010) 9 Page 437, learned counsel has emphasized that “It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction.” 5. On the same point, the learned counsel has referred to para 15 of the decision in Adalat Prasad Vs. Rooplal Jindal and others, (2004) 7 SCC 338, wherein it is observed that “if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any 8 material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence, in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code.” 6. In my view, the argument canvassed by the learned counsel is misconceived. The proposition of law enunciated in the above decision is not applicable to the facts of the present cases. It is not that the learned Magistrate has by himself sought to review the order; on the other hand, the omission to take cognizance of the alleged offence was found fault with by the petitioner and accordingly, the petitioner/accused sought to set aside the proceedings, but the Revisional Court in exercise of the power under section 397 Cr.P.C. has directed the learned Magistrate to consider the allegations made in the complaint and thereafter proceed in accordance with law. 9 7. Section 397 Cr.P.C. empowers the High Court or the Sessions Court to call for and examine the records of any proceeding before any inferior Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. The revisional Court having noticed the irregularity committed by the learned Magistrate by proceeding with the matter without taking cognizance of the offence has directed the inferior court to set right the said irregularity by proceeding with the matter in accordance with law. Therefore, the said direction cannot be construed as permitting the Court to review its own order as contended. Even otherwise, Section 460 (e) lays down that if any Magistrate not empowered by law to do any of the following things viz., :- (a) xxx (b) xxx 10 (c) xxx (d) xxx (e) to take cognizance of an offence under clause(1) or clause (b) of sub-section (1) of section 190. erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. 8. Viewed in the light of the above provisions and for the reasons discussed above, the direction issued by the revisional Court in my view does not suffer from any error or illegality warranting interference under Section 482 Cr.P.C. The contentions are rejected. Accordingly, the petitions are dismissed. Sd/- JUDGE *mn/- "